State ex rel. Minehan v. Wing

• Decision Date: 06 March 1909
• Citation: 119 N.W. 944,18 N.D. 242
• Parties: STATE ex rel. MINEHAN v. WING, County Auditor.
• Court: North Dakota Supreme Court

18 N.D. 242

119 N.W. 944

STATE ex rel.

MINEHAN

v.WING, County Auditor.

Supreme Court of North Dakota.

March 6, 1909.

Syllabus by the Court.

Following State ex rel. Steele et al. v. Fabrick (N. D.) 117 N. W. 860,held, that the question of the division of a county and the creation of a new county does not call for the exercise of the original jurisdiction of the Supreme Court by the issuance of its writ of mandamus directed to the county auditor requiring him to certify the returns of an election held upon such question, unless the circumstances are of such an exceptional character that adequate relief cannot be obtained in the district court.

Under the circumstances disclosed by the record, held, that no emergency or exigency exists in the present instance warranting the Supreme Court in taking original jurisdiction to issue its writ of mandamus.

State ex rel. McCue, Attorney General, v. Blaisdell, Secretary of State, et al. (N. D.) 119 N. W. 360, distinguished.

Application by the State, on the relation of M. F. Minehan, for writ of mandamus to Ole B. Wing, county auditor of McLean county. Application denied.Herbert F. O'Hare and Newton & Dullam, for relator. J. P. Nelson and Engurud, Holt & Frame, for defendant.

SPALDING, J.

The alternative writ of mandamus was issued by this court on the 19th day of January, 1909, commanding the defendant Wing, as county auditor of McLean county, to certify and make his certificate to the Secretary of State showing and declaring that a majority of votes cast at the November, 1908, election in McLean county was in favor of the formation of the new county of Stevenson, together with the number of votes cast for and against the formation of said new county at such election in McLean county by the voters thereof, or to show cause on a subsequent date why he had not done so. To this writ the defendant made return. It is not necessary to refer to it at length. The parties appeared through counsel on the return day when certain motions were submitted and arguments had thereon and on the merits.

Three separate propositions for the division of McLean county and the creation of new counties were submitted to the voters of that county and voted upon at the November, 1908, election. Among them was the question of the creation of Stevenson county. More affirmative than negative votes were cast on the question of its formation, but the defendant contends that there were fatal irregularities in the notice of the submission of the questions, in the conduct of the election, and in many other respects which need not be detailed.

The defendant at the outset objects to this court taking original jurisdiction, and we are compelled to determine whether a case is presented which will justify this court in the exercise of a sound legal discretion in taking original jurisdiction. We have so recently quite fully considered the subject that we are not called upon to review the authorities or to state at length the reasons for our conclusion. It is sufficient to say that on this question the views of this court are quite fully stated in State v. Fabrick, 117 N. W. 860, as far as it relates to the issuance of the prerogative writ except in case of emergency or exigency. The proceeding referred to was an application to this court for a writ of mandamus directing the auditor of Ward county to submit to the electors of that county at the November, 1908, election, various propositions for the division of Ward county and the creation of new counties therefrom. In that case we said: “In this case the matter involved pertains to the division of a county. Counsel forcibly urge that these matters are of great public concern, and involve the sovereignty and franchises of the state, by reason of the fact that the electors of Ward county will be deprived of voting on this matter of great concern to them unless the order be complied with to submit the proposition of the division of the county to them. We cannot agree with...